United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing 835)
filed by the defendant, Robyn Hamilton. The motion was timely
filed less than 1 year after Hamilton's conviction became
final. See § 2255(f). The Court's initial
review is governed by Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
relevant, Hamilton was charged with conspiring to distribute
and possess with intent to distribute 50 grams or more of
methamphetamine. Filing 446; see filing 593. The
case proceeded to a jury trial as to Hamilton and a
co-defendant, Julio Cesar Ponce-Ybarra. See filing
729. Hamilton did not testify in her own defense. Filing 734
evidence at trial suggested the existence of a large drug
distribution run out of Mexico, and operated in the United
States by Eduardo Valenzuela. See, e.g.,
filing 732 at 117-122. The primary witness against Hamilton
was Kailee Davis, a friend of Hamilton's, who was a
low-level dealer for the conspiracy. See filing 733
at 170-75. She testified that Hamilton was a methamphetamine
user, and Hamilton helped with drug sales in exchange for
money and drugs, by storing Davis's money and drugs and
keeping financial records. Filing 733 at 176-79. And Javier
Rodriguez-Compean, who distributed drugs for Valenzuela, said
he had met both Davis and Hamilton at Hamilton's house,
and Davis told him Hamilton kept the money and drugs there.
Filing 732 at 51-57.
government's evidence against Ponce-Ybarra placed him in
a different part of the alleged conspiracy. Valenzuela
testified that he was receiving drugs from Mexico and
distributing them in the United States, and that he used
Ponce-Ybarra to transport them. Filing 732 at 131-33. Davis
said she never met Ponce-Ybarra. Filing 733 at 205. In other
words, both Ponce-Ybarra and Rodriguez-Compean distributed
drugs for Valenzuela, but Davis's contact was only with
Rodriguez-Compean, and Hamilton's contact was only with
Rodriguez-Compean and Davis.
jury found Hamilton guilty of conspiracy, and separately
found that she was responsible for 50 grams or more of
methamphetamine. Filing 598 at 2-3. Ponce-Ybarra was
acquitted. Filing 598 at 4. Hamilton appealed to the U.S.
Court of Appeals for the Eighth Circuit, which affirmed her
conviction. United States v. Hamilton, 837 F.3d 859
(8th Cir. 2016). She now moves to vacate her conviction.
raises four claims in her motion: (1) inconsistent verdicts
between herself and Ponce-Ybarra, (2) her "opportunity
and desire to testify" to the facts of her case, (3)
that she was not tried before a jury of her peers, and (4)
sufficiency of the evidence. Filing 835 at 4-8. But as a
preliminary matter, the Court notes that the defendant did
not raise the first three claims on direct appeal, and claims
not raised on direct appeal are procedurally defaulted and
may not be raised under § 2255 unless a petitioner can
demonstrate (1) cause for the default and actual prejudice or
(2) actual innocence. United States v. Moss, 252
F.3d 993, 1000 (8th Cir. 2001).
contends that these claims were not presented on appeal
because of ineffective assistance of counsel. Filing 835 at
10. Attorney error is an objective external factor providing
cause for excusing a procedural default only if that error
amounted to a deprivation of the constitutional right to
counsel. Davila v. Davis, 137 S.Ct. 2058, 2065
(2017). Such a claim requires Hamilton to show counsel was
objectively unreasonable in failing to discover these issues
and raise them on appeal, and but for counsel's failure
to raise them, she would have prevailed on her appeal.
See Smith v. Robbins, 528 U.S. 259, 285-86 (2000).
Accordingly, the Court will consider the merits of these
claims in the context of assessing whether counsel was
deficient in not raising them on appeal, and whether Hamilton
was prejudiced as a result.
first claim is that there was "inconsistency of the
verdicts in finding her co-defendant not guilty." Filing
835 at 4. But "[i]nconsistency in a verdict is not a
sufficient reason for setting it aside." Harris v.
Rivera, 454 U.S. 339, 345 (1981). The Supreme Court has
"so held with respect to inconsistency between verdicts
on separate charges against one defendant, and also with
respect to verdicts that treat codefendants in a joint trial